Testate Succession

Question 1

Capacity rules

Answer 1

 Section 77(1) – must be 18 years or older
 Section 77(2) – must be sound disponing mind
- Banks v Goodfellow test and temporary lucidity (Corby v Leahy)

Question 2

Formalities for the making of wills

Answer 2

 Section 78
a) The will must be in writing
b) The will must be signed at the foot of the writing by the testator or by some person acting at his direction (signing on his behalf) and in his presence. (Mental capacity but can’t physically right)
c) The will must be attested by the signatures of two witnesses who saw the testator sign the will (they need not sign together).

Question 3

Alterations rules

Answer 3

 Section 85
- A will is ambulatory (capable of being changed [by formal alteration or revocation and new will]) until death. Alterations must however be made with the same formality as the will itself (mental capacity, signed, two witnesses).
- A formal alteration is called a codicil but this must go beyond simply writing on the text of the will and does not take effect unless properly witnessed

Question 4

Revocation rules

Answer 4

 Section 85 – a will is deemed revoked by marriage unless made in contemplation of that marriage.
Section 85(2)

… no will, or any part thereof, shall be revoked except by another will or codicil duly executed, or by some writing declaring an intention to revoke it and executed in the manner in which a will is required to be executed, or by the burning, tearing, or destruction of it by the testator, or by some person in his presence and by his direction, with the intention of revoking it.

Question 5

The Heron Principles

Answer 5

The Heron Principles
1. Read the clause as an ordinary piece of English and decide what it means.
2. Look at the rest of the will and see if it confirms the plain meaning or whether the meaning needs to be modified for a harmonious interpretation of whole.
3. If ambiguity persists, have regard to the overall scheme of the will and of what the testator was trying to achieve. (Preserve the intention of the testator)
4. At this point, one may have regard to rules of construction such as the presumption of early vesting.
5. Consider whether any rule of law prevents a particular interpretation
6. Finally, one may have regard to the decisions of other courts (with enormous amounts of due caution).

Question 6

Extrinsic evidence

Answer 6

 Section 90 – extrinsic evidence is admissible to assist in construction or to explain any contradiction.

 O’Connell v Bank of Ireland – Supreme Court confirmed that extrinsic evidence is only admissible where there is ambiguity (or contradiction in the text of the will)

Question 7

Spousal Legal Rights Share

Answer 7

Section 111/111A Succession Act 1965
- Where a testator leaves a spouse/CP at death the spouse has a right to a half share in the estate (value of the estate).
- Where there are surviving children, the legal right share is reduced to one third. Children of the testator. Doesn’t matter whether they are the spouse’s children or somebody else’s children.
- Doctrine of election – Where the will leaves a bequest to the spouse/CP, they must elect to either accept the bequest or to rely on their half share
- Make the choice within 6 months of the commencement of the administration of the will.
- The personal rep must notify the spouse of the right of election which is exercisable within 6 months of notification or 1 year of the appointment of the per. rep.
- Re Urquhart and Re Cummins

Question 8

Appropriation

Answer 8

 s.56 – A spouse may appropriate a dwelling house in satisfaction of the right share if they were living there prior to the death of the deceased. Chattels can also be appropriated up to the value of the legal right share.

Question 9

Children

Answer 9

s117 - Not proper provision
- L v L
- Re GM: FM v TAM
- Re LAC
- Re NSM
- EB v SS